Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston’s SJC Upholds Misleading Police Interrogations In Massachusetts Criminal Investigations

This week in the Boston Criminal Lawyer Blog, we have touched upon various issues involving Massachusetts search and seizure. Since I started this daily blog, I have warned you that, when performing a criminal investigation, police officers are allowed to mislead and, indeed lie, to a suspect.

A short time ago, this was confirmed in a case entitled Commonwealth v. Tremblay.

In this case, Mark D. Tremblay (hereinafter the “Defendant”), owned a house next door to Mr. Harold Nelson , whose home was adjacent to a lake in Chelmsford. Mr. Nelson was the owner of a twenty-foot Bayliner boat. On April 27, 2002, the boat the boat erupted in flames. The fire caused extensive damage to the vessel, and investigators concluded that it had been intentionally set.

The Defendant became the prime suspect during the resulting arson investigation.
Naturally, the Defendant was questioned during the investigation. However, the Defendant made the typical mistake that would be fatal to his defense. He believed what the police wanted him to believe. They told him that the statements he was to give were “off the record”. Apparently mistaking the interrogation for a press interview, the Defendant made inculpatory statements.

The Defendant was indicted and brought to trial. His attorney brought a motion to suppress the statements, claiming that the statements were involuntary because they were made with the understanding that they were made “off the record”. The lower court disagreed. The Defendant was convicted.

The Defendant appealed his conviction and the Appeals Court agreed with the trial court. And, now, finally, the Supreme Judicial Court has agreed with both lower courts.

Seems to me the Defendant could have saved alot of time, money and trouble if he had simply read this daily blog.

Attorney Sam’s Take On Search And Seizure And Police Investigations

In the end, we turn to a jury or judge (usually a jury) to determine guilt or innocence. As an experienced Boston criminal lawyer, I can tell you that the system basically sees this as a “no harm, no foul” situation. In other words, if a defendant is found “not guilty”, then no harm has been done, right?

In fact, the SJC, or any appeals court, does not come into play unless and until there is a conviction. The exception to this is an immediate appeal of a suppression finding…but such hearings also do not happen until close to trial.

In case you have forgotten, trial does not normally take place until six to twelve months or so down the road after arraignment.

The reality is that it is law enforcement who decides innocence or guilt to start the ball of criminal justice nightmares rolling. The fact is that that is when the harm…often irreparable harm…begins.

And this takes place, often, without the suspect even knowing that any investigation is pending. Usually, the suspect learns about the gathering of inculpatory information at the end of the investigation when he is about to change his name from “suspect” to “defendant”.

Yes, this would also be the time when the interrogation normally takes place. The one where if the suspect lies, it is a felony and if law enforcement lies it is good police work.

This might be fine…if a certain amount of integrity was built into the system so that there is more pressure to capture the guilty party rather than a guilty party. Or if, say, the prosecutor actually adhered to his or her oath about Justice instead of political ambitions.

“Sam…are you saying that the SJC actually gives law enforcement complete freedom in this?”

Yes and no. Tune in on Monday’s blog for some (small) reason for hope.

Have a great, safe and law-abiding weekend in the meantime!

To view the article upon which this blog is based, please go to http://policelegal.com/2011/07/20/sjc-rules-off-the-record-statements-admissible/

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